7 Paige Ch. 103 | New York Court of Chancery | 1838
Had it not been for the recent decision of the court for the correction of errors, I should have had no doubt that the order or direction of Mrs. Ross to her trustee to pay the amount of the bond when it should become due, out of her separate estate in the hands of her trustee, and his written acknowledgment of the receipt of the order, was sufficient to create an equitable appropriation of a part of that fund to the payment of that debt; so as to give the trustee of the infants a right to be heard on the appointment of a new trustee, in order that a responsible person might be appointed in whose hands the trust fund would be safe, so far as they were interested therein. But in the case of Rogers v, Hosack and others, the court of dernier resort decided, at the last December term, that an express covenant to pay a debt out of a particular fund belonging to the covenantor did not give to the persons to whom that covenant was given any legal or equitable right to a preference in payment out of that specific fund. And if such a covenant, founded upon a new and valuable consideration, would not create an equitable preference, a mere order of the wife upon the trustee of her separate estate to pay a debt out of the same, and without any new consideration, would not create a specific lien upon the trust estate; although the order was duly intimated to the trustee. I am therefore bound to declare, contrary to my opinion when the application was made to me in the summer of 1832 to appoint a new trustee, that W. James as trustee of the infant defendants had no interest in the appointment of such new trustee under the marriage settlement of Mrs. Ross, and had no right to be heard on such an application. She may therefore apply to modify the order of July, 1832, if she shall think proper to do so, and to make absolute the appointment of her brother William Lush, as trustee in the place of Treat.
Even if the vice chancellor was right in that part of the decree which declares that it was the duty of W. James, as the trustee for the children, to procure the appointment of a new trustee under the marriage settlement to protect their interests in that fund, he was wrong in supposing that